Accused method guilty in college kangaroo courts

It is a scary time to be on college campuses and not just because of COVID-19. In the last decade, the U.S. Department of Education has prioritized the micromanagement of campus disciplinary procedures for students and faculty accused of sexual misconduct. The department has consistently bullied schools into adopting specific types of disciplinary procedures, under threat of losing their important federal funding. The prevailing theme from the department has been that schools must make these “kangaroo-court-like” procedures fundamentally unfair to the accused.

Much of this mess started in 2011 when the department, by its Office of Civil Rights, sent a “Dear Colleague Letter” to educational institutions. This and related documents advised, with no basis in existing law, that colleges were no longer allowed to provide accused students with basic constitutional protections, including the chance to challenge the evidence collected by the college, provide evidence of their innocence, and already confront their accuser. In response to this guidance, schools across the country promptly deleted these crucial protections and rigged their disciplinary systems to help ensure that anyone accused of misconduct would be found responsible, in spite of of whether the accusations had any authentic basis.

Former Secretary of Education Betsy DeVos produced reason to hope when she recognized that scores of students were being denied “due course of action” and “basic fairness” as a consequence of this informal lawmaking. Secretary DeVos rescinded the Dear Colleague Letter, and related documents, and she then issued a rule requiring colleges to adopt some very minimal protections for the accused.

That rule may prove to be short-lived, however. The Biden administration has renewed the all-out war against procedural fairness. On March 8, 2021, President Biden issued an executive order directing the department to “review” its campus adjudication rule, “consider suspending, revising or rescinding” the rule, and, just in case we missed the point, “issue new guidance” on the issue.

While the order was ultimately noncommittal about whether the rule would be rescinded, on April 6, 2021, the Office of Civil Rights followed up with a public letter that resolved any doubt. OCR announced that it “anticipates publishing in the Federal Register a notice of hypothesizedv rulemaking to amend the Department’s Title IX regulations.” OCR almost certainly will rescind the DeVos rule and, rumor has it, will formally prohibit colleges from protecting the rights of the accused.

OCR is now run by Suzanne Goldberg, who is a well-known critic of procedural fairness for the accused. When they were issued, Goldberg objected to the Title IX rules in an op-ed entitled Keep Cross-Examination Out of College Sexual-Assault situations. In case the title was too subtle, she argued that a requirement that adult students be cross-examined during sexual misconduct disciplinary hearings could be “trauma-inducing” for accusers. “Campuses are not courtrooms,” she wrote, and consequently she advocated for eliminating due course of action that the Bill of Rights has long required in a courtroom.

President Biden has also nominated Catherine Lhamon to be the long-lasting head of OCR, who before ran the office and oversaw its efforts to erode due course of action with agency guidance documents. She testified at her confirmation hearing that the DeVos rule permitted “students to rape and sexually harass with impunity,” as though procedural fairness somehow causes guilty parties to escape justice. What seems to be lost on Lhamon, Goldberg, the department and the president himself, is that the government’s position is an express repudiation of constitutional guarantees. Courts have held cross-examination in campus hearings is constitutionally required. As estimate Amul Thapar wrote for the Sixth Circuit, “Due course of action requires cross-examination in circumstances like these because it is the greatest legal engine ever invented for uncovering the truth.”

Caleb Kruckenberg is a litigation counsel at the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group.

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